The hard process of legislating, rather than the whipsaw of executive actions that change from administration to administration, will lead to long-lasting change.
T he first war of President Trump’s administration is well underway. In a shock-and-awe campaign of executive orders, he terminated the previous administration’s racialist “equity agenda,” revoked President Johnson’s foundational executive order on affirmative action, and ordered all agencies to seek and destroy race-based DEI programs. He then activated several powerful weapons to fight DEI, including federal investigations against private corporations and universities, lawsuits to force compliance with civil rights laws, and the False Claims Act, which could hit some companies with massive legal liability.
In short, President Trump has declared war on DEI. To win the campaign against race-based policies such as DEI and affirmative action, Congress must join the fight and reform dozens of existing discriminatory federal laws. Otherwise, the next Democrat president could just undo Trump’s agenda to restore equality, merit, and fairness.
To be sure, the president’s powers to wage such a war alone are substantial. According to the Office of Legal Counsel, the president may “appropriately decline to enforce a statute that he views as unconstitutional.” Presidents have routinely exercised this power in the past, including President Trump, who in his first term refused to enforce multiple laws or programs that violated the Constitution. The president can also act through his attorney general, who also wields significant authority, having power to settle lawsuits, for example, and to notify Congress that certain laws will not be enforced. Additionally, the president can instruct his agencies to use more conventional tools, such as the Administrative Procedures Act, to repeal and replace regulations.
Such powers are fleeting. Even aside from the valid concern that executive powers can be abused, unilateral executive action can only go so far, and its effectiveness will no doubt be temporary without congressional action. Over the past several decades, Congress has entrenched race-based programs in the U.S. Code, ordering specific agencies to grant preferences or priorities based on race. Although President Trump may decide not to enforce some of those laws, or may attempt to curtail their effects, he cannot unilaterally repeal them. No matter what he does, federal laws that are the source of much of the DEI infrastructure will be sitting on the books like a time bomb, waiting for the next Democratic president to activate them.
Consider just one category of laws: federal contracting preferences. Since at least 1980, federal law has required agencies in many cases to set aside at least 10 percent of federal contracting dollars for minorities. This is a massive race-based spending preference. Federal contracting accounts for more than $750 billion in spending each year. Just to highlight a few examples: Federal law requires the U.S. Department of Transportation to set aside funds for minority road builders, the Small Business Administration to certify minority-owned businesses for special contracting set-asides, the EPA to reserve environmental contracts for minorities, and NASA to award contracts based on race. The Department of Labor even has an entire office tasked with enforcing these statutory race-based mandates. While the president might find creative ways to blunt federal laws, he cannot alone permanently make federal law colorblind. The laws will remain after he leaves office.
Apart from contracting, nearly every federal cabinet-level department administers race-based benefit programs, all of them explicitly authorized by federal law. For example, federal law requires the U.S. Department of Agriculture to operate dozens of programs that discriminate based on race. Programs for disaster relief, agricultural education, farm lending, land sales, research, food safety, crop insurance, and conservation easements all must include special race-based preferences under federal law. The USDA runs an insurance program for dairy farmers, for example, but federal law stipulates that minority farmers who use the program do not have to pay its annual fee.
Other agencies similarly run race-based programs authorized by federal law. Hiding behind the statutory phrase “socially disadvantaged individuals” (SDIs), federal law grants billions in preferences or priorities to minorities. The Department of Treasury is authorized to run a $10 billion homeowner assistance fund, a $2.5 billion small-business credit program, and a $1.5 billion local government assistance fund, all with statutory preferences granted to SDIs.
There are dozens of other similar race-based DEI programs embedded in federal law, as detailed in The Roadmap to Equality, a paper published by the Wisconsin Institute for Law & Liberty. Although the president may use his substantial tools to suspend or somewhat reform these programs, such efforts will only be temporary. It will take Congress to excise them from federal law.
Fortunately, some in Congress are taking notice and proposing to make President Trump’s anti-DEI agenda the law of the land. Senator Lee (R., Utah) and Representative Glenn Grothman (R., Wis.) have introduced the Ending Racism in Government Contracting Act, to stamp out federal DEI mandates in contracting, and Representative Tom Tiffany (R., Wis.) has introduced the even broader Fairness, Anti-Discrimination and Individual Rights Act of 2023. These are promising starts and have the added benefit of restoring Washington to a regular constitutional order.
Defeating DEI permanently will mean that the hard process of legislating takes center stage. That, not the whipsaw of executive actions that change from administration to administration, is the constitutional process that leads to long-lasting change. The American people have demanded equality for all as the Constitution guarantees. That necessarily means ending race-based DEI. But ultimate success and durable reforms require the president and Congress to work together.